The Ohio State University Moritz College of Law Civil Clinic et al v. United States Customs and Border Protection

Filing 20

ORDER granting 10 Defendant's Motion to Change Venue. Signed by Judge Gregory L. Frost on 4/28/15. (sem) [Transferred from ohsd on 4/28/2015.]

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DISTRICT
THE OHIO STATE UNIVERSITY
MORITZ COLLEGE OF LAW
CIVIL CLINIC, et al.,
Plaintiffs,
v.

Case No. 2:14-cv-2329
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

UNITED STATES CUSTOMS
AND BORDER PROTECTION,
Defendant.
OPINION AND ORDER
This matter is before the Court for consideration of Defendant’s motion to transfer venue
(ECF No. 10), Plaintiffs’ motion in opposition (ECF No. 15), and Defendant’s reply
memorandum (ECF No. 17). For the foregoing reasons, the Court GRANTS the motion and
transfers this case to the United States District Court for the Northern District of Ohio.
I.

BACKGROUND

In August of 2014, Plaintiffs The Ohio State University Moritz College of Law Civil
Clinic (“OSU”) and Advocates for Basic Legal Equality (“ABLE”) filed a Freedom of
Information Act (“FOIA”) request pursuant to 5 U.S.C. § 552. Specifically, Plaintiffs sought
documents reflecting certain practices and procedures that Defendant United States Customs and
Board Protection (“CBP”) uses at its Sandusky Bay, Ohio location. Plaintiffs allege that these
policies and procedures will shed light on alleged racial and ethnic profiling, which is the subject
of a related lawsuit currently being litigated in the United States District Court for the Northern
District of Ohio. See ECF No. 1 ¶ 2, 10–11 (citing Muñiz-Muñiz v. United States Border Patrol,
741 F.3d 669 (6th Cir. 2013)).

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Plaintiff ABEL, located in Toledo, Ohio, represents the plaintiffs in the Muñiz-Muñiz
litigation. Plaintiffs allege that, “[d]uring discovery in Muñiz, [they] obtained documents that
they believe support [the] profiling allegations” that form the basis of their FOIA request. (Id. ¶
11.) These profiling allegations allegedly support Plaintiffs’ request to waive the search, review,
and duplication fees associated with their FOIA request.
CBP failed to respond to Plaintiffs’ FOIA request within the statutory deadlines.
Plaintiffs therefore filed this lawsuit seeking “injunctive relief compelling the release and
disclosure of the requested agency records.” (Id. ¶ 22.)
Defendant now moves to transfer this case to the United States District Court for the
Northern District of Ohio pursuant to 28 U.S.C. § 1404(a). In support of its motion, Defendant
argues that Plaintiff ABEL has been litigating the Muñiz-Muñiz case for more than five years in
the Northern District, that the Muñiz-Muñiz litigation is “extensive, with more than 220 docket
entries on a 40-plus page docket sheet,” (ECF No. 10, at PAGEID # 38), and that many filings in
the Muñiz-Muñiz litigation (which allegedly are related to Plaintiffs’ FOIA request) are filed
under seal subject to a protective order. Plaintiffs oppose Defendant’s motion.
II.

DISCUSSION
A.

Standard Involved

Section 1404(a) provides, in pertinent part: “[f]or the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any civil action to any other
district or division where it might have been brought or to any district or division to which all
parties have consented.” 28 U.S.C. § 1404(a). The threshold question under § 1404(a) is
whether the action “might have been brought” in the transferee court. Id.; see also Kay v. Nat’l
City Mortg. Co., 494 F. Supp. 2d 845, 849 (S.D. Ohio 2007).

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Once this threshold inquiry is satisfied, the Court must consider the private interests of
the parties, including the convenience to them and to potential witnesses. Kay, 494 F. Supp. 2d
at 849. Plaintiff’s choice of venue, access to evidence, and other practical problems also are
relevant to the Court’s analysis of this factor. Id.
The Court then must consider other public interest concerns, such as systemic integrity,
fairness, and general interests of justice. Id. This factor encompasses the transferor court’s
interest in resolving the issue, docket congestion, and familiarity with the controlling law. See
id.; Moses v. Bus. Card. Exp., Inc., 929 F.2d 1131, 1137 (6th Cir. 1991); Jamhour v. Scottsdale
Ins. Co., 211 F. Supp. 2d 941, 948–49 (S.D. Ohio 2002).
The moving party bears the burden of establishing the need for transfer. Jamhour, 211 F.
Supp. 2d, at 948 (citing Mead Data Cent., Inc. v. W. Publ’g Co., 679 F. Supp. 1455, 1457 (S.D.
Ohio 1987)). After considering all relevant factors, the balance of convenience “should be
strongly in favor of a transfer before such will be granted.” First Bank of Marietta v. Bright
Banc Sav. Assocs., 711 F. Supp. 893, 896–97 (S.D. Ohio 1988).
B.

Analysis

The parties agree that the threshold issue under § 1404(a) is satisfied in this case.
Because FOIA’s venue provision would have permitted Plaintiffs to bring this case in the
Northern District of Ohio, see 5 U.S.C. § 552(a)(4)(B), the Court agrees with the parties and
proceeds to analyze the remaining factors of § 1404(a).
Regarding the second factor, the Court agrees with Defendant that the parties’ interests
weigh in favor of transfer. Sandusky Bay is located in the Northern District of Ohio; hence the
reason the Muñiz-Muñiz litigation is proceeding in that District. Two of the three parties to this
litigation, as well as the documents responsive to Plaintiffs’ FOIA request, are located in the

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Northern District of Ohio. Moreover, because the documents sought in Plaintiffs’ FOIA request
contain potentially sensitive information, in camera review is a distinct possibility. Such review
could require sending a representative from the Sandusky Bay station to the Southern District of
Ohio, which could create unnecessary practical issues.
Plaintiffs’ arguments to the contrary are not persuasive. Plaintiffs argue that documents
can be easily photocopied and transferred electronically, but do not dispute that their FOIA
request is particularly voluminous such that photocopying and electronic delivery could create
unnecessary expense. And although the Court agrees that Plaintiffs’ choice of venue is entitled
to substantial weight, see Kay, 494 F. Supp. 2d at 850, that fact is not dispositive. That fact is
especially unconvincing in this case given that Plaintiff OSU’s residence in the Southern District
of Ohio appears to be the only connection between this forum and the subject matter of the
litigation. See, e.g., Mead, 679 F .Supp. at 1466.
Other problems exist if this case remains in the Southern District. Plaintiffs allege that
their FOIA request relates to documents received during discovery in the Muñiz-Muñiz litigation,
which are subject to a protective order in that case. Practically speaking, Judge Zouhary (the
presiding judge in Muñiz-Muñiz) is better equipped to interpret the protective order and decide
when and how Plaintiffs can use documents from Muñiz-Muñiz in pursuing their FOIA request.
Judge Zouhary also is better equipped to determine whether Plaintiffs are using their FOIA
request to serve the public interest, as they claim, or as a strategic weapon to obtain information
for use in the Muñiz-Muñiz litigation.
The Court agrees with Plaintiffs that this case presents different legal issues from the
issues in Muñiz-Muñiz; however, a quick reading of Plaintiffs’ complaint reveals significant

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factual overlap between the two cases. Transfer therefore promotes judicial economy and
mitigates the practical problems associated with the protective order in Muñiz-Muñiz.
Regarding the third and final factor of the § 1404(a) analysis, the Court again agrees with
Defendant that the public interest weighs in favor of transferring this case. Plaintiffs allege that
their FOIA request will reveal racial and ethnic profiling in communities located in the Northern
District of Ohio. Individuals in those communities clearly have the most vested interest in
accessing the documents Plaintiffs seek. Indeed, in alleging that the requested records are “of
significant public concern,” (ECF No. 1 ¶ 2), Plaintiffs cite Muñiz-Muñiz and an article from the
Sandusky Register.
In light of the foregoing, the balance of convenience weighs strongly in favor of
transferring this case to the United States District Court for the Northern District of Ohio. The
Court accordingly GRANTS Defendant’s motion to transfer venue.
III.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s motion to transfer venue
(ECF No. 10) and transfers this case to the United States District Court for the Northern District
of Ohio.
IT IS SO ORDERED.
/s/ Gregory L. Frost_______________
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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